Citation Nr: 1208716
Decision Date: 03/07/12 Archive Date: 03/19/12
DOCKET NO. 09-49 634 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii
THE ISSUE
Entitlement to restoration of a 20 percent disability evaluation for bilateral hearing loss disability.
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The Veteran served on active duty from October 1972 to September 1975.
In July 2006, a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii granted service connection for bilateral hearing loss disability and established a zero percent disability evaluation. In November 2007, the RO increased the noncompensable disability evaluation for bilateral hearing loss disability to 20 percent disabling. A rating determination in June 2008 proposed to decrease the 20 percent disability evaluation to zero percent on the basis of clear and unmistakable error.
This appeal comes before the Board of Veterans Appeals (Board) from a September 2008 rating determination in which the RO reduced the 20 percent rating for bilateral hearing loss disability to zero percent, effective from December 1, 2008. The Veteran has perfected an appeal to this action.
The Board would point out the RO has characterized the issue as evaluation of hearing loss currently evaluated as zero percent disabling, the issue of entitlement to restoration of a 20 percent evaluation for hearing loss disability is presented for appeal. Generally, similar cases before the Court of Appeals for Veterans Claims have involved the concept of whether there has been improvement. However, improvement is not the only basis for reducing an evaluation. Severance and fraud are other examples. See 38 C.F.R. § 3.105 (2011). Here, no facts have changed and the issue is not improvement. Rather, the issue before the Board is whether the award of the 20 percent disability evaluation for bilateral hearing loss disability was based on clear and unmistakable error (CUE).
Following review of the record, the appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required.
REMAND
During the pendency of this appeal, a letter was received in February 2012 in which the Veteran requested to appear for a hearing before the Board at the Honolulu, Hawaii RO, or to be afforded a videoconference hearing in American Samoa where he resides if paid travel to the RO could not authorized for him and his representative.
Accordingly, the case is REMANDED for the following action:
Contact the Veteran and advise as to hearing options available to him. Then schedule the Veteran for a Travel Board or videoconference hearing as appropriate.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A.§§ 5109B, 7112 (West Supp. 2011).
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H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).